February 2007

President's Corner

Our Constitutional Commitment to Justice

by Ellen Conedera Dial, WSBA President

This issue of Bar News is devoted to a discussion of the State of Washington’s public-defense system. Several years ago, our system for providing indigent public defense was diagnosed as woefully inadequate — a signal that we are not fully meeting our constitutional commitment to equal justice, and equal access to justice. Despite the best efforts of committed judges, lawyers, and other professionals, careful studies conducted by the Washington State Supreme Court, the WSBA, and others made it clear that inadequate funding and lack of effective coordination had led to gaps in service, inconsistency, and, in some cases, lack of effective assistance of counsel.

Chief Justice Alexander’s introduction to this special issue of Bar News gives us an excellent overview of the persistent challenges faced by our public-defense system. It also describes how a coalition of organizations brought together by the Board of Judicial Administration (BJA), under the umbrella of the Justice in Jeopardy Initiative, is taking up those challenges in collaboration with the legislative branch.

You will find in this issue not only a primer on how we are going about the task of providing public defense to those who cannot afford it, but also what our failures have been, how we are correcting those failures, and what remains to be done. It is a report card of sorts, showing sustained effort and great promise, but describing a system that still needs a lot of attention and improvement.

The WSBA has been a proud partner with the BJA in the Justice in Jeopardy Initiative — one among many. The list of partners in the Justice in Jeopardy effort is stunning. At the BJA’s request, virtually every stakeholder in the justice system came to the table and began to change the landscape for the better. Former WSBA presidents Wayne Blair, Ron Ward, and Brooke Taylor; former Governor Jon Ostlund; Kirk Johns; former King County Bar President and former WSBA Legislative Committee Chair John Cary; WSBA Executive Director Jan Michels; and WSBA Director of Legislative Affairs Gail Stone have played leading roles for the WSBA in the work of the Initiative, as that historic partnership has forged with the Legislature new approaches to funding and sustaining court operations, indigent criminal defense, civil legal aid, and representation of parents in dependency and termination cases. In the last two legislative sessions, the Justice in Jeopardy Initiative has been one of the highest priorities of the WSBA, and it will be again this year as the Initiative takes the next logical step in improving funding for the courts and for legal services to those who need them but can’t afford them.

The focus of this year’s Initiative is a budget request for the biennium of $62.7 million, allocated to trial court operations (including money for court interpreters, court-appointed special advocates, and continuation of a juror-pay pilot program), criminal indigent defense, parents’ representation in dependency and termination cases, and civil legal aid. We look forward to working with the Initiative partners and the Legislature again this year. The Board of Governors supports the request, and the WSBA will be active in Olympia in support of the package.

There is another way in which justice is in jeopardy that is not discussed in the articles in this issue of Bar News, but it has made its way into the public consciousness in recent years. I refer to the emerging pattern of attacks on the independence of the judiciary, and the seeming lack of understanding by our citizens about the role of the judiciary in our system of government and the importance of a fair and impartial judiciary.

 
About two years ago, the ABA commissioned a poll to determine the level of understanding in the electorate of the system of checks and balances that is the genius of our constitutional form of government. The ABA poll showed that only 40 percent of the respondents could identify the three branches of government. Almost 50 percent did not know what “separation of powers” means, and 29 percent did not know the definition of “checks and balances.” In early 2006, a poll of registered voters in Washington showed that our citizens are more knowledgeable; 55 percent of Washington’s voters could correctly identify the meaning of “separation of powers,” but 31 percent do not know the meaning of the term “independent judiciary.” I believe that so long as our citizens do not understand and appreciate the role that the judiciary plays as a co-equal branch of government, and the role that a fair and impartial judiciary plays in our system of government, justice is in jeopardy.

Last fall’s appellate court elections presented Washington’s citizens with the question of the meaning of an independent judiciary in a different way. Appellate judicial races attracted unprecedented levels of contributions from advocacy groups. Here are some of the questions that we citizens face. Will the election of judges in Washington become increasingly politicized, as in some other states? Whatever the reality, will the public come to believe that judges decide cases based on political expediency? How would that perception affect public support of the concept of a co-equal branch of government, constitutionally committed to deciding cases impartially, by interpreting and applying the law?

These questions hit home with many in the judiciary and the Legislature. There will be multiple bills introduced in this year’s legislative session that would provide a public finance alternative for candidates for appellate judicial seats. The WSBA Board of Governors has voted to support the concept of public financing as one approach to assuring a fair and impartial judiciary. In a statement of principles adopted at its December meeting and emphasizing the importance of a fair and impartial judiciary, the Board supports public financing in concept, and also states that it will be open to considering other ways in which Washington state can act to assure a fair and impartial judiciary.

During the legislative session, Gail Stone, WSBA’s director of legislative affairs, is very active in Olympia, supporting bills that are sponsored or supported by the WSBA pursuant to Board of Governors’ action, or by sections that have taken action in accordance with WSBA policies to support or oppose a bill. By court rule, the WSBA and its sections may take positions on legislation only if the legislation relates to the practice of law or the administration of justice. During the session, representatives of the Board and of the sections frequently testify in support of or in opposition to pending legislation. The WSBA’s standing Legislative Committee has already presented to the Board of Governors a number of bills written or supported by sections, and at its December meeting, the Board of Governors voted to take the action (“sponsor” or “support”) recommended by that Committee. During the session, the Board of Governors’ own Legislative Committee meets weekly to consider bills falling within the WSBA’s purview, and to decide whether to support, oppose, or remain neutral on those bills. Those weekly meetings allow the Board’s Committee to stay current on the Justice in Jeopardy Initiative, bills to provide public funding of judicial races, and other bills on which the WSBA has taken action. If needed, special meetings of the Board will be called so that the full Board can consider important bills.

This important legislation that will be acted on in this session is a reminder of the role that we as lawyers play in educating the public on important issues concerning the legal system. We are the best spokespersons for increased funding for court operations, public defense, and civil legal services. We are the best spokespersons for the importance of a fair and impartial judiciary to the functioning of our system of government. We are the best spokespersons for everything that we must do as a society to assure the promise of equal justice. If not we, then who?

The Bar’s legislative policies and procedures are described on the Bar’s website at www.wsba.org. You can get more information about the Justice in Jeopardy Initiative by asking for the Board of Judicial Administration’s Information and Advocacy Guide for the 2007/2009 Biennium (dated September 2006), a copy of which is also posted on the Washington Courts’ website at www.courts.wa.gov/programs_orgs/pos_bja/cftf/JinJAdvocacy_Guide.pdf. Information about the ABA and WSBA polls on the three branches of government is available on the ABA and WSBA websites, respectively. 

Ellen Conedera Dial can be reached at 206-359-8025 or ecdial@gmail.com. If you would like to write a letter to the editor on this topic, please e-mail it to letterstotheeditor@wsba.org or mail it to WSBA Bar News, Attn: Letters to the Editor, 1325 Fourth Ave., Ste. 600, Seattle, WA 98101-2539.